Author Archive for
Duncan Hollis

2013 U.S. Digest Now Available

by Duncan Hollis

Just a quick note for those of you who, like me, have a fondness for the Digest of U.S. Practice in International Law; the 2013 volume is now available on the State Department’s website (see here).   I find the Digest to be one of the great resources on U.S. views of international law; it regularly includes letters, reports, and other documents that are hard (if not impossible) to locate elsewhere. In doing so, it also offers a contemporary glimpse of where the Executive Branch stands on manifold questions of international law and practice. Here’s how the accompanying press release describes this year’s Digest and the series as a whole:

The Department of State is pleased to announce the release of the 2013 Digest of United States Practice in International Law, covering developments during calendar year 2013. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2013 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2012 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2012. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

New ILO Treaty on Forced Labor Victims

by Duncan Hollis

With all the talk of the End of Treaties and Treaty Survival, it’s worth noting that the wheels of multilateral treaty-making have not come to a complete stop.  Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention.  On paper, the 1930 Convention was a success — it currently has 177 parties.  But it’s also considered outdated within the human rights community, which has emphasized the continuing and significant costs of forced labor in humanitarian and economic terms, necessitating new legal tools to limit or mitigate the effects of this horrible practice.

Some of the 2014 Protocol’s provisions are standard treaty fare on modern global problems — i.e., requiring “national” plans of action and domestic legislation on forced labor issues.  Other provisions reflect the need to update the 84 year old Convention itself (i.e., deleting provisions on forced labor in overseas “colonies”).  The heart of the treaty appears to be Article 4:

Article 4
1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.

2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

I’d be interested in reactions from those who follow the ILO and forced labor subjects more closely. Is this Protocol significant in the ongoing efforts to deal with human trafficking and forced labor? How important is the expansion of the right to relief to include migrants who might otherwise be labeled “illegal” via their immigration status?  And is the “entitlement not to prosecute” that significant a requirement?  It presumably still gives State authorities the ability to prosecute forced labor victims engaged in ‘unlawful’ behavior like sex work or drug offenses even if they were coerced into doing so. Thus, it seems more like an aspirational goal than a provision that will mandate changes in State behavior. Comments most welcome.

A Post-Snowden world? Criminalizing Chinese cyberespionage

by Duncan Hollis

Three quick (and thus tentative) thoughts on the BIG news out of the Justice Department a few minutes ago, announcing criminal charges against five officers of the Chinese People’s Liberation Army for hacking various U.S. industries, including Westinghouse and US Steel.  The Justice Department offered fairly detailed descriptions of how the hackers obtained information that had direct economic consequences for US companies, whether in terms of stealing design specs or pricing plans.  As a result, I don’t have much doubt that the evidence establishes behavior violating U.S. cyber crime laws as written. That said, this is still, as Holder himself admitted, an unprecedented move.  It’s not every day the U.S. government charges military officers with criminal behavior that was presumptively authorized by the foreign government itself.  Doing so suggests, not too subtly, that the real criminal here was China:

When a foreign nation uses military or intelligence resources and tools against an American executive or corporation to obtain trade secrets or sensitive business information for the benefit of its state-owned companies, we must say, ‘enough is enough.’ This Administration will not tolerate actions by any nation that seeks to illegally sabotage American companies and undermine the integrity of fair competition in the operation of the free market. This case should serve as a wake-up call to the seriousness of the ongoing cyberthreat. These criminal charges represent a groundbreaking step forward in addressing that threat.

For more background, you can watch the press conference here or read the prepared statements by Holder and others.

My first reaction was that these charges aren’t really about prosecuting the named officers, but of signaling to the world that the United States wants to change the status quo when it comes to State-sponsored cyber-exploitation.  The fact that States engage in cyberexploitation has long been widely known, but so far, the prevailing response has been a shrug of the shoulders — the theory being that spying cannot be regulated away so why bother trying.  These charges suggest a political effort, however, to do just that — i.e., to try and change the volume or nature of State-sponsored cyber-exploitations at least when it comes to impacts on private commercial actors.  I say a “political effort” since I very much doubt these charges will amount to much within the U.S. legal system.  Simply put, these five officers are not going to appear in a US courtroom to face the charges against them. I suppose it’s possible (although implausible) that China could express surprise at the U.S. evidence and announce its own investigation with some lip service about shutting rogue actors down or holding accountable those responsible. But, even in such a case, I can’t see China handing them over to the United States.  Much more likely, I suspect will be Chinese protestations of “trumped-up” charges or “false” evidence by the U.S. Government.  As such, assuming they don’t vacation abroad, these officers are unlikely to face any negative consequences; on the contrary, I’d bet they’ll probably be lionized in some ways at home.

My second reaction was that of a law professor, asking in a hypothetical world where these officers somehow did end up before a U.S. court, what would happen then?  I assume there’d be a claim by the defendants of sovereign immunity and, for the reasons stated above, I doubt the Chinese government would dispute such immunity.  This would, in turn, raise interesting questions about whether the Foreign Sovereign Immunities Act would grant immunity from prosecution to these officers or whether the Justice Department could successfully invoke one of the statute’s exceptions. Based on the repeated references in this morning’s press conference to the ‘commercial’ nature of the Chinese cyberexploits, I’d guess DOJ’s theory is that it can proceed under the FSIA’s commercial activities exception, which affords federal jurisdiction to cases “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  I know many of our readers are expert in sovereign immunity issues, so I’d be interested in your reactions — do these officers have a legitimate claim for sovereign immunity?  Or, might they invoke some other status-based immunities and with what likely results?

My third reaction was that these charges represent the official start of a Post-Snowden era. For the better part of a year, Snowden’s revelations have dominated almost all discussions of cyber activities involving the United States.  To be sure, the United States has tried to rebut some of the allegations or recast others in a more positive light, with pretty mixed (some might say poor) results.  Indeed, every time, the United States tried to move on, there was some “new” revelation waiting in the wings to forestall that effort.  In recent weeks, however, Snowden-related disclosures have slowed, while at the same time the United States has had some diplomatic successes (see, e.g., the NETmundial final statement ).  Thus, there’s certainly space today that wasn’t present a few months ago for the United States to try and refocus the conversation.  I wonder if this explains the timing of these charges.  After all, U.S. complaints against China were a central plank in U.S. cyber-policy pre-Snowden, so it’s not surprising they’ve been looking for an opportunity to get back on the offensive when the circumstances were ripe for it.  Whether this offensive will be successful remains, of course, to be seen.  It’ll bear close watching how China responds to these charges, both publicly (i.e., in defending its officers or launching counter-charges against US officials) and privately (will there by an escalation of cyber operations by China or others).  But whatever China does, I suspect we’re going to witness renewed attention to the question of whether all cyber-espionage is really the same (i.e., can we distinguish, as the U.S. urges, between State-sponsored hacking for national security interests vs. State-sponsored hacking for economic gain).  I’d hope, moreover, that part of that conversation will involve the question of what role law can play, if any, in regulating cyber-espionage, whether as a matter of domestic or international law. 

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year's lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]

The End of Treaties? The End of History?

by Duncan Hollis

AJIL Unbound, the new on-line companion to the American Journal of International Law, has begun to publish short essays this week for its on-line Agora, The End of Treaties? (see the original call for papers here). So far, they have posts up by Tim Meyer (‘Collective Decision-making in International Governance‘) — and Joel Trachtman (‘Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness‘).  Additional posts will be rolled out over the course of the week here.

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis.  Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law.  Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties.  On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments).  The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.  

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves?  Again though, I’m not sure there’s evidence to support the claim.  True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making.  For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through.  This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’.  I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward.  Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you.  Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage.  I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic.  For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order.  So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week.  I trust it’s the start of a great conversation.

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

Now in Paperback: The Oxford Guide to Treaties

by Duncan Hollis

Just a quick note to flag for interested readers that Oxford has released a paperback version of my book, The Oxford Guide to Treaties.  Happily, it is significantly cheaper than the hardback version — it’s listed for under $60 on Amazon right now.  I hope that this edition will interest non-institutional buyers for whom the earlier price tag was a bit steep. See here and here for additional links.

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.

Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today – Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

2014 ASIL Certificates of Merit Announced

by Duncan Hollis

I had the great pleasure the last several months to serve on ASIL’s Book Awards Committee (along with Jutta Brunnée, Jean d’Aspremont, Saira Mohamed, and a very well organized chair in Jacob Cogan).  I’m pleased to announce that the Society’s Executive Council has selected three winners for 2014 based on our nominations.  The winners (plus the Committee’s accompanying citation) are as follows:

Certificate of Merit for a Preeminent Contribution to Creative Scholarship:  Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013).

In Socializing States: Promoting Human Rights Through International Law, Ryan Goodman and Derek Jinks offer a groundbreaking theory of acculturation that illuminates how social processes can promote human rights and, more generally, can influence norms. “Acculturation” refers to “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture.” The authors distinguish acculturation from two other mechanisms of social influence: “material inducement,” or the offering of rewards for conformity or punishments for nonconformity with a state’s or institution’s demands, and “persuasion,” whereby actors internalize new norms through a process of social learning and “redefine their interests and identities accordingly.” Goodman and Jinks offer a sophisticated account that both defends the relevance of acculturation and acknowledges its weaknesses in some areas. The theoretical complexity and methodological rigor of Socializing States make this a book that should be studied by any scholar interested in promotion of human rights, the spread of global norms, regime design, or compliance. It has already changed scholarship in these areas and will certainly continue to influence the field in the years to come.

Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars:  Robert Kolb, The International Court of Justice (Hart Publishing 2013)

Robert Kolb’s International Court of Justice provides a magisterial, lucid study of its subject. The breadth and depth of the treatment are impressive: Kolb takes the reader from the history of the Court, to its role in international society, to the more technical questions concerning its composition, powers and procedures, to the development of its jurisprudence, and to its future. The finely grained discussion provides much more than a mere survey of the Court’s constitutive instruments and decisions. It engages the Court as an institution and asks how it actually operates, and secures efficacy and authority in doing so. The book’s careful and detailed coverage of the Court’s legal framework and operation will benefit practitioners and scholars alike. There is no doubt that Kolb’s volume immediately takes a place among the authoritative references on the Court.

Certificate of Merit in a Specialized Area of International Law:  Bardo Fassbender and Anne Peters eds., The Oxford Handbook of the History of International Law (Oxford University Press 2012).

The Oxford Handbook of the History of International Law innovatively and comprehensively provides a timely and ambitious global history of international law from the sixteenth century to the mid-twentieth century. Under the skilled editorship of Bardo Fassbender and Anne Peters, the contributors, experts who themselves come from all parts of the world, present a history that imagines international law as the product of different regions, cultures, actors, and eras. Setting a new agenda for the field, the Handboowill be the indispensable starting point for students and researchers exploring the history of international law.

The awards will get presented at this year’s ASIL Gala Dinner.  I’m looking forward to seeing the authors there and having a chance to congratulate them personally on their achievements.

Welcome to the Blogosphere AJIL Unbound

by Duncan Hollis

I’m pleased to flag the fact that the American Journal of International Law has recently launched its own blog — AJIL Unbound.  Interested readers can find out more about the project and the Journal‘s interest in reader feedback here.  In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. in concert with the Journal‘s print-based Agora on that same case in its October 2013 issue.  I look forward to reading these posts and also to seeing how AJIL Unbound develops and evolves in the weeks and months ahead.